PAGE, Circuit Judge.
In these cases there was a provision in each contract for substantially equal monthly deliveries of iron, and that the contract should be treated as separate for each installment. The price fixed was f. o. b. cars seller's furnace. There was no provision as to place of delivery, but there was evidence that defendant had two places to which it had theretofore had iron, purchased from one or both of plaintiffs, shipped, and there was some evidence that it had been the practice for defendant to specify the place of delivery. No place of delivery was thereafter given, and no deliveries on the contracts were made, save of a single carload on one of the contracts, ordered delivered and paid at contract price about March 23, 1922, when market price was about half of contract price.
The evidence, which is substantially if not wholly without contradiction, is that until April 27, 1921, all parties treated the contracts, except as to times of delivery, as subsisting, valid, and binding. It needs no authority to support the proposition that a breach, not persisted in, and not accepted or relied upon by the opposite party, is of no consequence. Such was the substance of the requests for instructions made by plaintiffs, and it was error to refuse them.
The court instructed the jury, "The breach occurred at the end of each of these months" (meaning July to December, 1920, inclusive). This was likewise error, because, under the circumstances, it was a question of fact as to when a breach, that was relied on, occurred, and whose it was, and extremely harmful to plaintiffs, in view of the state of the market then and thereafter.
The judgment in each case is reversed, and the cause remanded.
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